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The Lost Children Of Foster Care

Nina Bernstein met with the Gotham
Gazette Reading NYC Book Club at the Jefferson Market Branch of the New
York Public Library on May 27 to discuss her book "The Lost Children of
Wilder." Through the story of one family and a very lengthy lawsuit, it
examines New York's foster care system and its effects on those it is
supposed to serve and protect. The edited transcript is below.

Gotham Gazette: This month we read The Lost Children of Wilder by
Nina Bernstein. The book is about foster care in New York City. It
follows one family -- a woman who grew up in foster care and then had a
child who also grew up in foster care -- and one court case for 30
years. As an introduction, Ms. Bernstein is going to read a passage.

Nina Bernstein: At this point, Lamont Wilder has been sent to
Minnesota to be adopted. He's been in this family for some time [reads a
passage that begins on page 218 in which his foster family tells him he
has to leave].

Gotham Gazette: That passage indicates the trauma that both Shirley
and her son Lamont face going through the 30-year saga of their family
in foster care. Besides it being personally wrenching for the people
involved, you also mention that the city spent $530,000 for the 21 years
that Lamont spent in foster care.

Nina Bernstein: And he aged out with nine dollars in his pocket, a
GED [high school equivalency diploma] and a debt to city taxpayers
because he had a small son who was born homeless. It's a costly system,
it's a harmful system, and really one of the reasons I wrote the book
was to delve deeper into the mystery of why the system is so hard to
fix.

We know a lot about the system; people have written newspaper exposes
and other books about that. I try to give a historical perspective on
the institutions that Shirley and Lamont encountered, and that this
26-year long class-action lawsuit encountered when it tried to alter
that structure.

THE WILDER CASE

Gotham Gazette: Can you give us a basic description of the
lawsuit?

Nina Bernstein: The lawsuit was filed in 1972 when Shirley Wilder was
13. It was brought by civil liberties lawyers, specifically Marcia
Robinson Lowry. It challenged the system that had failed Shirley, who
ran away from an abusive home. She was a motherless child, she had been
abused, her father was an alcoholic. Everyone agreed that Shirley needed
a home, but there was no home for her because all the foster care beds
were controlled by religious agencies getting public dollars that were
entitled by law to give preference to children of their own faith.

There had been a shift in the demographics of need in New York. There
were black Protestant children who needed care, because these were
children of the poor, and the agencies that had most of the money and
most of the beds were Jewish and Catholic agencies. Children like
Shirley had to wait for the leftovers. The lawsuit contended that these
agencies preferred white children of any faith to black children: Any
non-white child was at a disadvantage.

After a year of waiting in detention for a placement and having
agency after agency turn her down, Shirley was sent to a harsh state
reformatory â€“- Training School for Girls at Hudson â€“- by default because
there was no other place for her. This was a place for delinquents. She
was mistreated there; older girls tried to rape her with a broomstick;
she ran away. This is another example of an institution doing damage
when it was supposedly there to help.

This was the system that the lawsuit challenged, and it really
challenged the whole power structure of ethnic groups in New York. So it
was not met with great enthusiasm in the social services community, to
put it mildly.

Gotham Gazette: Did it end up accomplishing anything?

Nina Bernstein: That's a tough question.

On the one hand the lawsuit became so becalmed with court hearings
and reports and avoidance mechanisms in the legal system that people
likened it to Jarndyce v. Jarndyce, the lawsuit in Dickens' Bleak House
that went on for so long that people forgot what it meant. I know that
my book has been used in some recent attacks on the value of class
action lawsuits.

But I think that it did eventually have a meaning, and that using the
story that way is a distortion, because the question has to be asked:
What was the alternative to this kind of challenge? Clearly you could
argue, and certainly Marcia Lowry would, the validity; this challenge
was so powerful, so right, that it was met with so much anger and
resistance. It can be argued that the biggest impact it had was right
after it was filed. It just shook things up; it made visible a situation
that was invisible.

But nevertheless you end up 26 years later with the lawsuit being
folded into a settlement of a bigger lawsuit that Marcia Lowry brought.
City politics had changed; the foster care system was almost entirely
made up of children of color so that agencies had to accept them to stay
in business.

LONG LEGAL BATTLES

Gotham Gazette: There was a recent article in Newsday, which referred
to another case, which the judge referred to as having a "long and
tortured history" similar to the Wilder case. Two former foster children
brought suit against the city because they were mistreated by their
foster families. They said that the city should be responsible for
protecting foster children in families that the city has assigned them
to. Like the Wilder case, it's been going on for a while. There was a
decision two days ago, and the city announced that it is going to
appeal. How normal is it for a case, especially dealing with children,
to last for so many decades? Is that just a quirk, or a coincidence, or
is that standard?

Nina Bernstein: I don't think you can call it a quirk. The whole
effort at institutional reform through class action lawsuits is under
attack in part because it lasts so long and then the government can say,
"Oh, it's just a waste of time and energy. It we didn't have you, the
court, micromanaging, we could do all sorts of other things, better
things. You're part of the problem now; you're not part of the
solution."

One thing that I would stress, though, in opposition to that view is
that, especially in child welfare but probably in all very difficult
social policy areas, there is a tendency in America to resurrect the
solution before last, to make the effort to fix the problem the new
problem and to resurrect some failed solution without examining what was
wrong with it.

Let me give you an example. We seem to have forgotten that in the
Depression, parents gave children to orphanages because they literally
could not feed them, could not support them. When Aid to Dependent
Children was created, the forerunner of Aid to Families with Dependent
Children II - AFDC, welfare - orphanages were full. Contemporaries
complained that they were terrible places that raised children who were
not good citizens and could not be self-sustaining and so forth. After
Aid to Families with Dependent Children, Social Security survivors'
benefits and all that, the orphanages emptied. Now we have a situation
where the only financial support for families raising children is in
foster care. There is no right to welfare. We decided that was a
mistake, that it created all kinds of problems.

We now have the Adoption and Safe Families Act, which tries to
encourage adoption. That's another solution that has been popular at
various times.

But one of the things that has been happening is that a lot of the
children's parental rights are being terminated without foster families
to place them in. We're creating this generation of legal orphans. Or
you see situations like the family in New Jersey that created a business
out of adopting children with subsidies. These are the kids who were
starving.

We now are at a place where we say the class action lawsuit is part
of the problem not the solution, but it does seem to me that the people
go to court because that's the place where these children can, there's a
promise that they'll be heard.

LAMONT WILDER TODAY

Marlyn Torres: I was so moved when I read your book. It was really
eye opening. I'm curious to know if you have any update in terms of
Lamont and his family.

Gotham Gazette: Lamont will be 31 years old on June 4.

Nina Bernstein: That's true. I'm still very much in touch with
Lamont, and there's good news and bad news. Some of the good news came
out of the book. A partner in Cravath Swain and Moore, a friend of Fritz
Schwarz, who has an important role in the case, basically took Lamont
under his wing. The partner - he was very impressed with Lamont - gave
Lamont a job at Cravath, and he's working there.

The bad news is twofold. One, Kisha [the mother of Lamont's child]
has only very rarely allowed Lamont to see his son.

The other, which is a public policy question, is that Lamont's
paycheck has been greatly reduced by the child-support arrears that the
state is claiming. This is not to give it to the boy, who with his
mother has been in and out of homeless shelters, but to pay back the
taxpayers supposedly for a period when Lamont himself was living hand to
mouth, sleeping in a barber chair, trying to make a living cutting hair,
and the child and his mother were on welfare.

It's really an insanity. My colleague at the New York Times, Leslie
Kaufman, who now covers social services, wrote a story about the problem
of so-called deadbeat dads, some of them coming out of prison with debts
of $150,000.

Lamont is in this impossible situation and, because I no longer have
to be objective the way I was when I was writing this book, I found him
a lawyer who would work pro bono to try to challenge the arrears in
Family Court. I testified because I knew the situation he was in at the
time he did not pay the child support. He was impoverished and he
couldn't pay. The case was dismissed. Maybe there's going to be an
appeal, but it's all very iffy.

Meanwhile, just recently the state Tax and Finance Department
attached Lamont's bank account - his bank account, which had 45 cents in
it - for $11,000. That would have meant, had he not found it out, that
his paycheck â€“- and let me tell you, his paycheck is little -â€“ would
have been taken because he has direct deposit.

I wanted Lamont to be able to create a home that was an alternative
for his son, who is still in a very precarious situation, who could
still himself end up in foster care, and it seems as though our
policies, the policies toward poor people, toward poor parents,
undermine that. That gets me back to this idea I touched on in the
introduction to the book but that seems so important to me: It's very
hard to fix foster care apart from how we treat poor children in
general.

Gotham Gazette: Just to play devil's advocate here, I understand your
attachment to Lamont, but what about his now 10-year-old child? In other
words, isn't the policy supposed to focus on the children?

Nina Bernstein: The policy is supposed to focus on the children, and
Lamont is paying child support. But you have to look at the way this is
structured.

Basically, the state, the government, acknowledges that you have all
these fathers who are never going to be able to pay these arrears, that
this is an impossible debt. This is to us, theoretically, not to the
child. Wouldn't it make more sense to help Lamont establish a home where
this child can actually come?

There's a rent assistance program run by the Coalition for the
Homeless. There was a point where Lamont was commuting from a homeless
shelter to his job at Cravath, Swain and Moore. I referred him to this
rent assistance program, and they said, "The problem is that his
take-home pay after this garnishment of his wages is too small for it to
be worthwhile for us to subsidize his rent because he won't be able to
live anyway."

It doesn't help Lamont's son to make his father homeless or for
Lamont to decide this is hopeless, the thing for me to do is not to have
a real job with a paycheck but to go into the underground economy. I'll
do better selling drugs or running numbers. And that's clearly what a
lot of fathers have done. So something's not working here.

Gotham Gazette: Is the money that's garnished going to his son?

Nina Bernstein: No. As I understand it, the mother, who has meanwhile had another baby by another man, is on welfare again. So all that
Lamont's child would be getting is...only a portion, a relatively small portion. A larger sum was going to the mother when she wasn't on welfare
and when she was working.

Obviously you want fathers to be responsible to support their
children. You also want them to get to see their children and to
develop a relationship with them...

In this case I know this little boy wants a relationship with his
father. He wants sneakers and school clothes and meals every day and a
roof over his head too, of course, but he also needs a relationship with
both his parents.

CHANGES IN CHILD WELFARE

Marlyn Torres: Since the book leaves off [in 1999], there have been changes in
child welfare in New York City. Elisa Izquierdo died, the Administration
for Children's Services was created and there have been other changes in
the child welfare system in the last 10 years. Any thoughts on those
changes?

Nina Bernstein: I have to say first of all that I am not closely
following the Administration for Children's Services at this point and I
haven't been in the last couple of years mainly because I'm not covering
it. I'm covering immigration now for the New York Times.

But clearly there's been a big change in the Administration for
Children's Services since the end of the Wilder lawsuit. It's
interesting because Nicholas Scoppetta, who is often credited with
overhauling the agency, doesn't want to give any of the responsibility
for the changes to Marcia Lowrey's successor lawsuit to Wilder, the
Marisol case. Nicholas Scoppetta says the lawsuit had nothing to do with
the changes but he credits the coverage of Elisa Izquierdo's death.

I started writing this book when I was at New York Newsday for which
I wrote a two-part series about Wilder 20 years later. I came to the
Times in October of 1995, when I was writing the book, with all of this
-- or almost all of it -- in my head. So the stories that I and my
colleagues wrote about the Elisa Izquierdo case took that death and
talked about it systemically. In a sense, that coverage would not have
been there without the Wilder case.

That also harks back to this question of the role of a class action
lawsuit. There were depositions, there were subpoenas, documents. There
was a whole trove of material that documented what the system had done,
what its problems were, so this wasn't just a flash in the pan. It
wasn't just one bad social worker.

But, now there's the other part, what happened after the Elisa
Izquierdo case. At first there was what Richard Wexler, executive
director of the National Coalition for Child Protection Reform, calls
foster care panic. This girl had been beaten to death by her mother on
the city's watch, so they pulled all these kids into foster care. That
was supposed to be the safe way to go and, in fact, a lot of these kids
were hurt in foster care. It was the wrong thing.

Well, then there was a shift. It's all been very hard to untangle
this, but ultimately my sense is we now have an administration that is
very much for trying to keep families together, providing preventive
services. The numbers in foster care have gone way down. However, again,
there's a caveat. If you look back over the history you see there are
these roller coaster ups and downs. When foster care numbers go down,
reform is possible. It's possible to hold agencies to stricter account
and so forth. When demand goes up and foster care numbers go up, it all
goes out the window. They throw out the standards. They'll take any
bed.

I don't want to downplay the fact that there have been really
important and very positive changes in the child welfare system. I like
to think that the attention that a lot of people brought to it in
lawsuits, in newspaper stories and in books made a difference but I
don't think we can rest on our laurels.

IMMIGRATION AND CHILDREN

Gotham Gazette: You mention you are writing about immigration for the
Times now. We are in the midst of the largest immigration boom in a
century. How has that affected the foster care system?

Nina Bernstein: Clearly there are some impacts, including one that I
found very interesting and wrote about. This is young immigrants who
come seeking political asylum -- unaccompanied minors trying to rejoin
relatives here -- and end up in foster care. There was a terrible
problem of these kids aging out of foster care, like so many Americans
kids aging out of foster care, without good skills or enough money to
make it but, even worse, aging out into statelessness or immediately
facing deportation. Even though they might have been in foster care
since they were very young, no one had ever gone to the trouble to see
that they got green cards and had immigration papers that allowed them
to stay or get financial aid for college.

There are also issues in immigrant families regarding methods of
discipline that here are considered abuse, or children threatening their
parents that they'll call Administration for Children's Services.

But the bigger impact is the poverty in which children of immigrant
families often live. We have an idea of how positive it is for children
to see their hardworking immigrant parents. Then, they are all going to
be strivers and have the success story that we can recall in our
parents' or great grandparents' stories.

But the reality is sometimes a little different. You have children
who are left at home because the parent is working three jobs. Or you
have extremely overcrowded conditions because the only way to pay the
rent is for people to be living with 26 roommates, like the New York
magazine story about David and his 26 roommates.

Ironically, this may be one of the reasons that the number of kids in
foster care is down. Our standard for what is acceptable for the
children of the poor may have gone down. I mention in the introduction
that in American history there's been a kind of iron rule that
"conditions must be worse for the dependent poor than for anyone who
works. The seldom-acknowledged corollary is that the subsidized care of
other people's children must be undesirable enough or scarce enough to
play a role in deterring parents from seeking it for their children. In
the late 19th century, charitable reformer Josephine Shaw Lowell
expressed this view when she insisted that "the honest laborer should
not see the children of the drunkard enjoy advantages which his own may
not hope for."

So, if you have immigrant workers who are being paid less than
minimum wage and they can only provide this really very paltry situation
for their child, how can foster care be great? If it were, wouldn't it
be in the best interests of children for good parents to give them up
into foster care? This is what happened in the 19th century when you had
this idea of using orphanages as a kind of free boarding home, as a
kind of boarding care for the poor.

WHEN FOSTER CARE HELPS...

Darius Ross: My parents were involved in the foster parenting system,
taking a child in who had a lot of problems. When I first married, I did
the same thing. The question becomes, are we as a minority group missing
those kids that are falling through the cracks?

We have formed an organization of wealthy minority philanthropists.
What can we do as minorities with money or minorities with wealth to
make some transitions?

Nina Bernstein: I do think that there are a lot being missed. There
is an interesting theory that it is in the homeless shelter system that
you now see kids together with their families, or with their mothers
anyway, who previously would have been in the foster care system.

So yes, you are probably missing it. Now my reaction to the idea of a
philanthropy of African Americans, or people of color, who would help
their own is very mixed. On the one hand, it has this real positive
sound, and is absolutely in the same tradition of other groups. It is
what happened with the Jews and the Catholics. But I think that there
are real pitfalls in the systems in the agencies that are created by
this effort. There is always a kind of conflict of interest. You want to
keep the institution going, you end up wanting the donors to feel good.

I found extremely valuable the work of Justine Wise Polier, this
judge who was so sorry that , after a lifetime of trying to reform the
system, she felt she had no choice but to send Shirley Wilder away to
the training school for girls. The judge was then in her 70s but she did
something that was very valuable: She wrote about the system that she
had known at a time when the poor children in foster care were white,
not black. From the description of these institutions, where they had
the good set of china for the donors who came, the medium stuff for the
staff, and the crap for the children, you realize that class can have a
more important effect sometimes than race or religion.

Having said that, I think that foster parents do some terrific work.
What was the saving grace for Lamont Wilder? It was that his first five
years were with a loving foster mother, who became his de facto mother.
As it happened, he was black and she was Hispanic. It wasn't that that
was without problems for him. He clearly had a problem with being dark
skinned and his mother wasn't. Then when he was sent to white families
there were also problems. But the point is he had this loving foster
parent. A loving foster parent can be very important. And if your
parents were involved in that, if you were involved with that, you know
that a foster parent can make a huge difference in the life of the
child.

I'm not saying foster care is always the wrong solution. It's just
that, on the whole, what you want to do is not make more foster care or
more institutions. You want to try to make the necessity for them as
small as possible.

...AND WHEN THE SYSTEM DOESN'T HELP

Irene Williams: About three years ago in an agency that purports to
represent the needs of children in foster care in the courts, there was
a case of a little girl about eight years old who had broken ribs,
broken arms, horrible, horrible stuff going on. The Hispanic father
claimed everything was fine and he wanted his family back. The person
who I reported to at the agency said that there were no places where
Hispanic men could comfortably go. Well this is nonsense; there were
lots of places where they could go. But [my supervisor's] goal was to
bring families back together no matter what. And over this issue we
parted.

This was a very bright, young black woman who took her stand and did
not deny in any way that it had to do with racial pride and so forth,
which is terrific. But the best interests of this child were in no way
being served.

The opposite was going on in Chicago, where Patrick Murphy has
insisted that children be removed from dangerous situations after one
case where a child was returned and was found hung.

Nina Bernstein: My experience as a newspaper reporter covering foster
care in three different states over many years is that all systems err
in both directions. Even if the philosophy may shift at the top, and
there may be an extreme "let's keep the families together" attitude or
an extreme "let's take the kid out and run' attitude," that is rhetoric.
On the ground, you see the system almost inexplicably leaving kids in
abusive situations whether with parents, foster parents or institutions,
or pulling kids in circumstances where you feel like a little help is
all that is needed. And, obviously, there are situations where they do
it right.

In your situation, you had an individual case and an individual
worker where it seems as though, from the way you tell it, philosophy
and principle were standing in the way of doing what was clearly right
for this child. But most of the time it isn't like that.

I remember covering a story about twins here in New York who were
accused of raping a neighbor. They were something like 13 years old. It
was so monstrous. Then you look at what their experience had been. They
were homeless, taken into foster care, moved to and fro, and twins whose
twin was all they had left â€“put in separate foster care situations. I'm
not saying that it excuses them, but they would have been better off
with their mother, who they were back with anyway. But it was at the
time of the Elisa Izquierdo case, and the idea was to bring kids into
the system.

There is also a money issue. I'm not saying that simply more money is
necessarily the answer. But the foster care rate that the city pays has
gone down and down. There's a limit to what an agency can provide with
what the rate now is.

MONEY MATTERS

Katie Stoehr: Not only has the state rate gone down but New York City
doesn't even pay the full state rate to the contracting agencies. They
pay about 93 percent of that, and for some agencies that's a difference
of millions of dollars a year. That could be more intensive casework,
that could be therapeutic support, that could be all sorts of mentoring
programs that got slashed years ago. A lot of stuff could happen with
that more money.

I've thought a lot about what we can do and it's really hard for a
lot of the reasons that you just spoke about. It's impossible to divorce
child welfare from general issues of poverty. But the one thing I keep
coming back to over the past couple of years I've been working in this
system and seeing different sort of child welfare scandals erupt: For a
week or two, people care a lot and then they don't. Then they care about
something else.

It's hard for a child to advocate for him or herself. It's awfully
hard for an abusive parents who's at their wits end, maybe has mental
health or drug issues to advocate for him or herself. The kids who are
left in foster care right now are mentally ill or have behavioral
issues. Some of the teenagers have criminal histories. There aren't
often people willing to take a 13-year-old fire starter into their home.
So I was glad to hear your tone throughout that this was not this is the
evil system doing its evil thing because the system is us. It's our
system and if we don't like it we need to all change it.

Nina Bernstein: You make very important points. What you were saying
about children not having real advocates or needing advocates helps
point out why I end up coming around again, to feeling great admiration,
for all her flaws, for Marcia Lowry, who stuck with this. I know there
are things that she's done also legally that have angered people, who
feel that she is insufficiently sensitive to the needs of poor parents
or that she's politically tone deaf. But the fact is that someone who is
trying to speak for these children is very important, whether it's
someone within the system or someone who's outside the system calling on
all of us to do better.

HOLDING ON TO HOPE

Meta Bodewes: I work in the system with parents who have lost their
children or in danger. It can be very depressing to think that in 30
years, the system has not changed. I'm sitting in Family Court the other
day and I thought, "This is exactly the same. Why are we sitting here
for three hours waiting to hear this case? It's going to take two
seconds in front of a referee. You wait in line longer than you are
actually in front of a judge."

Given that you know Lamont and that you have covered foster care,
what gives you hope? You don't sound cynical, you don't sound bitter,
angry, you're still very fair. You see all the sides - there's more than
two. What is it out of all of the things that you've learned that keeps
you so not cynical, which would probably mean you're hopeful?

Nina Bernstein: I think what keeps me hopeful is the human resilience
that I saw even in Shirley, the fact that she was proud of the Wilder
legacy, and the pain that she felt -- which if I start talking about I'm
going to choke up -- when she realized that her grandson was at risk of
going into the system.

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